Beware Ontario School Support Workers … We’ve Seen this Ford Show Before

By David Doorey, York University

Reporter Kristin Rushowy at the Toronto Star reported today that the union representing 55,000 school support staff has planned a meeting soon “to discuss holding a strike vote”.  Minister of Education Stephen Lecce called the decision to hold such a meeting “regrettable”.

Oh, brother. Here we go again.  I have explained this basic point about labour law many times (see The Folly of Not Taking a Strike Vote).  However, once again, for the people at the back, let me explain to you why Minister Lecce’s comment is nonsense.

The Legal Model Expects Unions to Take a Strike Vote … That’s How the Model is Designed

Of course CUPE is meeting to discuss plans for a strike vote.  It would be irresponsible for the union to not do so.  That’s because Ontario labour laws require that unions take a successful strike vote as a precondition to engaging in any type of job action.

A majority of employees in the bargaining unit must support the possibility of a strike before any one of them can legally strike.  That is a law introduced by Conservatives, by the way.  Conservatives expected unions to conduct strike votes. They wanted them to. This was part of their insistence that union democracy be legislated. So it’s beyond rich for a Conservative Minister to suggest that there is something foul in a union doing precisely what the Conservatives told them to do.

Now, note that “strike” is defined very broadly in Ontario labour law to include not just a full-fledged walk-out, but any concerted action that is intended to restrict output.  In other words, a strike includes a work-to-rule, a rotating refusal to attend meetings, or a slowdown, in addition to a walk-out.  So, assume that the employer proposes a wage cut and then refuses to budge.  It can do that.  Our laws then tell workers that if they don’t like the idea of a wage cut, they have tools at their disposal.  They can attempt to put pressure on the employer to change its bargaining position by engaging in industrial action, such as a work-to-rule, a rotating strike, or a full-on walk out.

But, as just explained, the workers cannot do any of that unless a majority of them have already approved a strike in a vote taken by the union.  It is the fact of having a successful strike vote in their back pocket that gives the union’s bargaining team power in negotiations to push for bargaining improvements.  That is why it is common for strike votes to come out close to 90% or higher. It is irrational for an employee to vote ‘no’ in a strike vote because doing so simply undermines the ability of the union to bargain improvements for them.

Let me make this as clear as possible: THE BEST THING THAT A UNION CAN DO TO HELP THE EMPLOYER IN COLLECTIVE BARGAINING IS TO NOT TAKE A STRIKE VOTE.  THE BEST THING THAT A WORKER CAN DO TO ENSURE THE EMPLOYER MAXIMIZES ITS BARGAINING POWER IS TO VOTE ‘NO’ IN THAT STRIKE VOTE.  Canada’s collective bargaining model presumes that unions will take strike votes.  There is nothing nefarious about strike votes.  They are built into the model. They are normal and expected to take place.

Remember that a successful strike vote does not mean that there will be a strike. Strikes are very rare in Canada. Almost all collective bargaining ends in a settlement. It might not seem that way because most of the time we hear about collective bargaining in the news it is because a deal is not reached.  No union is going to take workers out on a full-fledged strike unless there is very strong support for that action.  Workers should vote ‘yes’ in a strike vote not because they want a strike, although that is a possibility, but because they want the union’s bargaining team to have power to bargain a deal and thereby avoid a work dispute. Again, that is how the model is designed to work.

Beware the Employer Who Discourages Strike Votes. We’ve Seen This Story Before.

Now, back to Minister’s comments. He thinks the idea of CUPE taking a strike vote is ‘regrettable’.  Of course he does.  LOL. He would love nothing more than for the support workers to not take a strike vote.  So would his boss, Premier Doug Ford.  Doug and his late brother Rob knew all about how the labour law model works.  Does anyone remember Rob Ford’s approach to collective bargaining with CUPE, Local 416 (Toronto outside workers) back in 2018?  I do. In fact, I kept a daily diary on my blog (now included as an Appendix to Chapter 34 in my text The Law of Work and here on the blog, but formatting is a bit off) following the bargaining blow by blow.  There is an important lesson in that story.

This bargaining came on the heels of a nasty ‘garbage strike’ in 2009.  Rob Ford promised in his campaign for Toronto Mayor that he would contract out garbage collection and ensure there would never be another garbage strike. He was elected and when negotiations began, CUPE made it very clear that it had no intention of taking a strike vote.  The union knew that the 2009 strike had turned much of the public against the workers and it wanted to demonstrate that if a work stoppage occurred it would because the City locked out workers.  CUPE never took a strike vote.

In order for the City to achieve Rob Ford’s promise of contracting out garbage work, it needed to eliminate or heavily modify a collective agreement term that prevented contracting out that caused layoffs. CUPE obviously wanted to keep that language to avoid its members being laid off.  CUPE proposed a 0% raise and essentially proposed simply extending the existing agreement.  But Rob Ford and the City had other plans.  The City requested and received a ‘no board report’ from the government, which led to a legal strike/lockout date of February 5, 2012. Bargaining continued up to that date, but no deal was reached.  CUPE still had not taken a strike vote so the workers had no legal right to strike.

Then, on February 3, the City dropped the bomb.  It sent a letter to the union, all the workers, and the media that explained that as of February 5, it would not lock out the workers. Instead, it would unilaterally amend the existing terms of the collective agreement in a manner that would permit the employer to layoff hundreds of CUPE members and replace them with external contractors!

Here is what the City of Toronto’s letter said (from page 583 of my book):

Our labour laws permit employers to unilaterally impose their final offer in bargaining once the employer is in a legal lockout position (here, on February 5).  This is not a real threat if the union has taken a successful strike vote, because the workers can just walk off the job if the employer tries this cute little move. BUT CUPE HAD NOT TAKEN A STRIKE VOTE, SO THE WORKERS COULD NOT RESPOND BY STRIKING.  CUPE’s bargaining power was gone. A couple of days later, CUPE agreed to a deal that permitted the employer to terminated any worker with less than 15 years’ service and give their jobs to a non-union contractor.

Would the outcome have been different if CUPE had taken a successful strike vote?  Would the City have threatened to impose its final offer if it knew the workers could just go on strike again?  We will never know.  However, we can certainly say without reservations that CUPE conceded substantial bargaining power and levers to respond to the employer’s threat by not taking a strike vote.

A number of important rounds of collective bargaining are upcoming in Ontario.  Doug Ford is now the Premier. He remembers what happened at the City of Toronto. No doubt the capitulation of CUPE in the City of Toronto bargaining, leading to the contracting out of hundreds of unionized jobs, was celebrated around the Ford compound.   In this latest round of bargaining reading thousands of school board support workers, history should be a guide.  Of course, CUPE should take a strike vote.  Of course, the workers should vote in favour.  That is the only sensible course of action and the precise step that the law expects workers to take.